Wedmore v. State

• Decision Date: 28 June 1957
• Docket Number: No. 29377,29377
• Citation: 143 N.E.2d 649,237 Ind. 212
• Parties: Jack WEDMORE, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 649

143 N.E.2d 649

237 Ind. 212

Jack WEDMORE, Appellant, v. STATE of Indiana, Appellee.

No. 29377.

Supreme Court of Indiana.

June 28, 1957.

Rehearing Denied Sept. 18, 1957.

George T. Patton, South Bend, for appellant.

Edwin K. Steers, Atty. Gen. of Indiana, Owen S. Boling, Deputy Atty. Gen., for appellee.

BOBBITT, Judge.

Appellant was charged by affidavit with having carnal knowledge of a female child under the age of sixteen years under Acts 1941, ch. 148, § 3, p. 447, being § 10-4201, Burns' 1956 Replacement, tried by jury, found guilty of assault and battery, ¹ and sentenced to the county jail for 180 days and fined in the sum of $1,000.

Two errors are assigned as follows:

1. The court erred in overruling appellant's motion to discharge for lack of prosecution.

2. The court erred in overruling appellant's motion for a new trial.

We shall consider the assigned errors in the order mentioned.

First: Appellant asserts that the trial court caused him to be held by recognizance bond beyond three terms of court in violation of Acts 1905, ch. 169, § 220, p. 584, being § 9-1403, Burns' 1956 Replacement, by 'failing to appoint and qualify a special judge under Rule 1-12' of this court.

We deem it unnecessary to detail here the proceedings had in the St. Joseph Superior Court for the selection of a special judge. It is sufficient to note that appellant filed a motion for a change of venue from the judge in the term in which he was arrested and entered his plea. The ensuing delays resulted from such motion.

Appellant, by his request for a change of judge, set in motion the chain of events which caused the delay in his trial. This delay was caused by his acts, hence he is not entitled to a discharge under § 9-1403, supra. Sullivan v. State; Flick v. State, 1939, 215 Ind. 343, 345, 346, 19 N.E.2d 739; Colglazier v. State, 1953, 231 Ind. 571, 575, 110 N.E.2d 2; Shewmaker v. State, 1956, 236 Ind. 49, 138 N.E.2d 290.

The trial court did not err in overruling appellant's motion for discharge.

Second: The sole question presented by the second assignment of error is the sufficiency of the evidence to support the verdict of the jury.

Considering the evidence most favorable to the appellee, the record discloses that Richard Wedmore and Jack Holderman picked up two girls, ages 14 and 15 years, respectively, under the false representation to the father of one of the girls that they were taking them to baby sit for Wedmore's sister, telling the girls that they were going dancing and have a party. They proceeded to take the girls across the Michigan State Line where they bought two cases of beer.

On their return they took one case of beer to the Wedmore apartment where they picked up appellant, Jack Wedmore, who at that time was separated from his wife. The three men and the two girls then went to pick up another girl for appellant. After picking up the third girl they all then went to the apartment of Jack Holderman where they drank beer and wine and danced. The prosecuting witness testified that about 5:30 p.m. appellant took her into the bedroom, which was off a hallway in the apartment, where he removed part of her clothing, and had sexual intercourse with her, the details of which, including the penetration, were fully related by the prosecuting witness.

This witness, in her statement to the South Bend police, made on March 31, 1953, which is in the evidence as State's Exhibit 'C', related that she got to her brother's apartment about 8:30 p.m. on the day of the alleged act, and that she told her sister-in-law, Grace Reed, about what had happened, and that she also told the other two girls (Martha Richards and Caroline Bauer) who had been with her at the Holderman apartment.

Appellant asserts that there is not sufficient evidence of probative value to sustain the conviction herein because (1) the 'case rests upon the testimony of a single witness who is so discredited on material matters by contradictory testimony as to render her testimony unworthy of belief.'; and (2) because the State took no steps to require a psychiatric examination of the witness to determine her probable credibility.

We shall consider these reasons in the order named.

(1) The record discloses that the prosecuting witness, on or about September 25, 1953, called appellant's sister by telephone to tell her that she 'wanted to change my [her] story about Dick and Jack Wedmore.'; and that on February 17, 1954, the prosecuting witness went to the office of appellant's attorney and signed a statement reciting that appellant did not have sexual relations with her on March 30, 1953, 'or any other date.'

There is also in the record statements by the prosecuting witness herein in which she said that she did not have sexual intercourse with Dick Wedmore, but on the occasion of each of these statements she stated, without equivocation, that there was nothing said at the time she made these statements relating to Dick Wedmore, about changing her story concerning Jack Wedmore, the appellant herein.

The prosecuting witness was 17 years of age at the time of the trial upon which this appeal is based. Whether or not she was telling the truth when she signed the statement in the office of appellant's attorney, or on the witness stand at the time of the trial, was a question for the jury. The credibility of the witnesses herein and the weight of their testimony are questions for the jury, and this rule applies in an action for rape. Liechty v. State, 1930, 202 Ind. 66, 74, 169 N.E. 446; Ritter v. State, 1946, 224 Ind. 426, 427, 67 N.E.2d 530.

It is not within the power of this court to determine the credibility of a witness or to say when a witness is telling the truth. Yessen v. State, 1955, 234 Ind. 311, 315, 126 N.E.2d 760. It is apparent from the verdict that the jury believed the prosecuting witness' testimony given at the trial--this they had a right to do, and, in so doing, they could take into consideration the fact that the statement reciting that she did not have sexual relations with the appellant was signed by her in the office of appellant's attorney at a time when only she and he were present, and also that such statement was witnessed by the attorney for appellant.

In determining her credibility as a witness for the State, and in support of her testimony, the jury also had the right to consider the fact that, at her first opportunity, the prosecuting witness told her sister-in-law and the other two girls who were at the Holderman apartment, about the incident which allegedly occurred in the bedroom. People v. Davis, 1957, 10 Ill.2d 430, 140 N.E.2d 675, 680.

The jury is not required to consider the evidence in fragmentary parts, "but the entire evidence is to be considered, and the weight of testimony to be determined from the whole body of the evidence." Breedlove v. State, 1956, 235 Ind. 429, 134 N.E.2d 226, 232.

In our opinion there is sufficient evidence in the record before us to sustain the verdict of the jury.

(2) Appellant relies upon Burton v. State, 1953, 232 Ind. 246, 111 N.E.2d 892, to support his contention that the judgment of the trial court should be reversed because the State did not have the prosecuting witness examined by a physician before the trial.

As was true in the Burton case, no question was raised in the trial court concerning the competency of the prosecuting witness herein to testify, nor was any request made by the appellant or his attorney that such witness be subjected to a psychiatric or any other medical examination.

There is no statutory or other law in Indiana which requires the State to assist a defendant in the defense of his case. If the defendant had any question as to the competency of the State's witness, it was his duty to raise such question in the trial court at the earliest opportunity, and failing so to do any such question is waived. Pooley v. State, 1945, 116 Ind.App. 199, 204, 62 N.E.2d 484; Bingham v. Walk, 1891, 128 Ind. 164, 173, 27 N.E. 483.

'* * * the overwhelming weight of authority indicates that 'the question of the competency of a witness to testify, whether the objection is based on the ground of interest, relationship, infamy, or want of credit, incapacity to understand the nature of an oath, death of one of the parties to a contract, or other ground, comes too late when raised for the first time in the appellate court.' 3 C.J., Appeal and Error, § 740, p. 828, [4 C.J.S. Appeal and Error, § 294] and cases cited. Indiana seems to be in line with the majority rule.' Pooley v. State, supra, 1945, 116 Ind.App. 199, 204, 62 N.E.2d 484, 485.

We concur in the statement by Judge Draper in the dissenting opinion in Burton v. State, supra, at pages 260, 261 of 232 Ind., at page 898 of 111 N.E.2d, as follows:

'But no objection was made to the testimony of this child because she had not been cleared by a psychiatrist. None such could be made. Our legislature has not seen fit to require such as a condition precedent to the right to testify in court, and I do not believe this court has any right to impose it.

'I do not hold lightly the language found in Wigmore's Treatise on Evidence (3rd Ed.), Vol. 3, § 924a, which is referred to in the majority opinion. I think it merits the careful consideration of the General Assembly. But if the suggestions therein made are to become the law in Indiana, it should be made law by the legislature. Procedural methods and safeguards should be established and clearly pointed out. To say that a woman may not testify against a man in a sex case unless she first submits to a psychiatric examination covering, perhaps, a period of many months, in the absence of legislation requiring it, seems to me to be an unwarranted arrogation of authority which this court does not have. * * *

'I do not know whether the state undertook to determine whether this little girl was a 'fantast.' If so, I doubt whether the state would have had the right to...